Sri Lanka’s constitutional ping-pong

On 22 September 2020, Sri Lanka’s Justice Minister tabled the 20th Amendment to the Constitution in Parliament despite protests by members of the opposition. What does the proposed 20th Amendment to the Sri Lankan constitution mean for constitutional governance in Sri Lanka? What objectives does it seek to achieve? How should citizens understand the amendment in the context of Sri Lanka’s history of constitutional governance?

The 20th Amendment, I argue, is best understood in light of the 17th (2001), 18th (2010) and 19th (2015) Amendments. The country’s history of constitutional reform exposes how different governments and political parties have exploited representative democracy to consolidate political power. A historical perspective also allows citizens to appreciate both the impact of this amendment on accountability and their own role in strengthening and protecting constitutional governance in Sri Lanka. Unless Sri Lanka’s citizens reclaim representative democracy from political parties and its charismatic leaders, the rally of constitutional ping pong in Sri Lanka will, most likely, continue.

The 20th Amendment

The 20th Amendment envisages a reversal of most reforms that were introduced by the 19th Amendment. Remaining intact is the right of access to information, the term limit on the presidency and the reduction of the terms of the presidency and of the parliament. The term limit on the presidency – which was removed by the 18th Amendment and reintroduced by the 19th Amendment – safeguards Sri Lanka from the danger of constitutionally mandated personal rule. In the absence of a term limit, the risk of the incumbent abusing his or her powers to be re-elected would be high. The right of access to information, or Article 14 (A), has been the only constitutional reform to expand the guarantee of fundamental rights under the Constitution of 1978. When read together with the Right to Information Act (2016), Article 14 (A) provides a legislative and institutional structure that ensures citizens have right of access to public information. Since it was established, the Right to Information Commission has allowed citizens to hold bearers of public office accountable for their decisions.

While these few reforms may remain intact, many reforms introduced by the 19th Amendment will not. In fact, the reforms proposed in the 20th Amendment, in addition to being problematic in and of themselves, will weaken the aspects of the 19th Amendment that survive. Taken as a whole, the proposed 20th Amendment will undermine the modest gains in the advancement of Sri Lanka’s constitutional democracy. The 20th Amendment proposes that a Parliamentary Council replace the Constitutional Council. It proposes the repeal of reforms introduced to the office of the prime minister under the 19th Amendment, and the repeal of the Audit Service Commission and the National Procurement Commission. The 20th Amendment reintroduces the option for the president to pass ‘urgent’ bills, except those that amend the Constitution. These are only a few of the democratic gains that will be reversed. It would also permit dual citizens to hold elected office and reverse the minimum qualifying age for election to the office of the president.

Independence and the Constitutional Council

The concept of a Constitutional Council, that is to say, an institution that recommends or confirms appointments to commissions and other posts required to be independent from political persuasion, has a long history. In 1990, the Presidential Commission on Youth proposed a Nominations Commission to recommend names for appoints to several commissions. This proposal remained live in the debates on constitutional reform post-1994 and a Constitutional Council was first proposed in the Draft Constitution of 2000. While the attempt to adopt a new constitution failed, the 17th Amendment introduced a Constitutional Council in 2001. Since 2006, however, the Council was not convened and in 2010, the 18th Amendment replaced the Constitutional Council with a Parliamentary Council. In 2015, the Constitutional Council was reintroduced.

In fact, the reforms proposed in the 20th Amendment, in addition to being problematic in and of themselves, will weaken the aspects of the 19th Amendment that survive.

The Constitutional Council has been described as an ‘independent’ body. This ‘independence’ is either contested or valourised depending on whether one supports the Constitutional Council or not. A more useful consideration, perhaps, is what the Constitutional Council is expected to be independent from?  The Constitutional Council under the 17th Amendment included the prime minister, the speaker, the leader of the opposition and seven unelected members nominated as follows – one by the president, five by the prime minister and the leader of the opposition, and one by those parties in Parliament not already represented in the Council. It is evident that under the 17th Amendment the Constitutional Council was designed to be independent from the political persuasion of the dominant political parties in Parliament, as far as possible. It can therefore be described as an attempt at multiparty participation in governance.

Under the 19th Amendment, the number of unelected members was reduced to three. This time around the Council comprised of the prime minister, the speaker, leader of the opposition, a member of Parliament nominated by the president, two members of Parliament jointly nominated by the prime minister and by the leader of the opposition, and three unelected individuals jointly nominated by the prime minister and the leader of the opposition. It also included one member of Parliament nominated by political parties not already represented by the prime minister or the leader of the opposition. The quorum of the Constitutional Council is five. This means that, in principle, the elected members who are nominated to the Constitutional Council are able to make decisions without the three unelected members. Under the 19th Amendment too, therefore, the Constitutional Council was designed to develop consensus among political parties represented in Parliament.

Both Constitutional Councils therefore sought to improve the appointment process by requiring that the executive be accountable and transparent in that process. It did so by strengthening multiparty governance – the 19th Amendment explicitly more so than the 17th Amendment. Replacing the Constitutional Council with a Parliamentary Council from which the president would ‘seek observations’ is a poor substitute for the Constitutional Council (of either type). The Constitutional Council has the power to recommend individuals for appointment to the independent commissions and to approve the names of individuals recommended by the president, among others, to the appellate courts (the Supreme Court and the Court of Appeal), the attorney general, the auditor general, the inspector general of Police. Under the 20th Amendment, there is a significant power imbalance between the Parliamentary Council and the president. This is compounded by the reintroduction of the immunity of suit for the president during office. By replacing the Constitutional Council with a Parliamentary Council, Sri Lanka runs the risk of replacing the Constitutional Council with a body that functions as a rubber stamp for executive decisions.

The prime minister, executive president and parliament

In expanding and strengthening the checks on the executive president, the 19th Amendment re-organised the balance of power between the executive president and the prime minister. The president appointed the prime minister but could no longer remove him. Appointments of members of Parliament to the cabinet was to be on the advice of the prime minister. The president remained the head of the cabinet but could not hold a cabinet portfolio. These changes to the office of the prime minister under the 19th Amendment have been steeped in controversy because of the constitutional crisis of October 2018 and the tragic Easter Sunday attacks of April 2019. Both events went to the heart of what it means to be a constitutional democracy. Compared to the constitutional crisis, the impact of the Easter Sunday attacks was more deeply personal and emotional for many. The lack of coordination between the president and the prime minister at that time, the work of the National Security Council and the ways in which the tragedy might have been averted are under active inquiry. To the Sri Lankan public, these critical events suggested that the changes made to the two highest executive offices were materially harmful to Sri Lanka. The 20th Amendment proposes to remove the prime minister’s advice in the appointment of cabinet ministers and reintroduces the president’s power to remove the prime minister. It further allows the president to assign subjects and functions to himself. Critics of the 19th Amendment argue that such reform will prevent ambiguity in the allocation of powers and re-introduce stability to government.

The electoral promise to abolish the executive presidency has been fashionable since the 1990s but to date has not been fulfilled.

In 2015, the 19th Amendment was introduced as part of the purported attempt to abolish the executive presidency. The electoral promise to abolish the executive presidency has been fashionable since the 1990s but to date has not been fulfilled. The semi-presidential system in Sri Lanka (a directly elected president, a cabinet accountable to parliament and a prime minister) has been the subject of much debate during this time. Reform of the executive presidency has been made more complicated by rulings by the Supreme Court, which has determined that any constitutional reform of the office of the president requires not only a two-thirds majority approval in Parliament but also approval at a referendum. In the text of the Constitution, only an extension of the term of the president requires approval at a referendum. However, the Supreme Court jurisprudence, as it stands, requires that any reform to Sri Lanka’s semi-presidential regime type receive approval at a referendum. For reasons that are not clear, governments have been reluctant to place the question of abolishing the executive presidency before the people at a referendum. This is despite, in several instances, having been elected into office on the promise of abolishing the executive presidency.

Be that as it may, this is the context in which the 19th Amendment proposed the changes introduced to the office of the president and of the prime minister. While remaining within the broad category of a semi-presidential regime type, the reforms effectively changed Sri Lanka’s regime type from a president-parliamentary regime in which the president could remove the prime minister from office, to a premier-presidential regime in which the prime minister could only be removed by Parliament. The conduct of the bearers of those offices, particularly in the instance of the constitutional crisis and in the governance of national security, suggests that there was minimal appreciation for what the 19th Amendment sought to achieve in relation to their offices and with regard to the overall constitutional scheme of governance. In that context, the failures of implementation of the 19th Amendment created the political conditions that make the 20th Amendment a viable political option today. That is to say, a return to a president-parliamentary regime.

A more useful consideration, perhaps, is what the Constitutional Council is expected to be independent from?

A recent empirical study on regime types suggests that a semi-presidentialism in which the president is the most powerful office (a president-parliamentary regime) is the worst possible option in terms of democratic performance and government performance. The study claims that a parliamentary regime is the best possible option. Interestingly, it suggests that a semi-presidential system in which the president does not have the power to remove the prime minister (a premier-presidential regime) is either as effective as a parliamentary regime or even better. Democratic performance and government performance are evaluated in this study on the basis of several indicators, such as the Freedom House’s index of civil liberties, Transparency International’s Corruption Perceptions Index and the UNDP’s Human Development Index. Regardless of whether the general findings of this study apply in the Sri Lankan context, it is a helpful reminder of the types of questions that we ought to ask to evaluate the impact of the proposed 20th Amendment in terms of the overall scheme of governance.

Institutional and discursive accountability

In Sri Lanka, constitutional reforms that further constitutional governance have only come about when the political party or coalition in power has depended on the support of other parties to remain in power. The moment a political party has a two-thirds majority in Parliament within its reach, that government has preferred to strengthen the executive presidency. Even reforms that were progressive were made in the interest of consolidating political power. In this context, it is essential that citizens are clear about the ways in which constitutional ping-pong can impact accountability.

Accountability in a constitutional democracy takes different forms. In fact, the resilience of a constitutional democracy depends to a great extent on the availability of multiple forms of accountability. The best understood form of accountability is the existence of regular, free and fair elections, also known as vertical accountability. As the oldest electoral democracy in Southasia, Sri Lanka has proven to be adept at exercising this form of accountability. However, a constitutional democracy requires vertical accountability at a minimum. It requires institutional and discursive accountability if it is to survive incremental or full-frontal attacks. Vertical accountability can be rendered meaningless without adequate levels of institutional (horizontal) and discursive (diagonal) accountability.

Replacing the Constitutional Council with a Parliamentary Council from which the president would ‘seek observations’ is a poor substitute for the Constitutional Council (of either type).

Institutional accountability is maintained where the three branches of government (the executive, the parliament and the judiciary) and the fourth branch of government (independent commissions, the attorney general, the police etc) are held accountable by each other. The replacement of the Constitutional Council with a Parliamentary Council, the removal of the office of the president and several other bodies from government audit, and the immunity of suit for the office of the president undermines institutional accountability. The proposed changes to auditing and the Right to Information Commission will also erode institutional accountability – a point that has already been made in public discussion on the Amendment. When institutional accountability is undermined, actors and institutions that would otherwise hold the state accountable through public discourse lose critical safeguards.

Discursive accountability is a reference to the functions played by the media, civil society organisations, professional bodies, universities and other institutions that are designed to deliberate, debate and critique government and public affairs. These institutions perform significant functions in a constitutional democracy. They hold political actors and institutions accountable, and seek both truth and transparency in public affairs. These institutions can seek discursive accountability only when funding bodies, law enforcement agencies and the judiciary protect and respect their constitutional freedoms. Any attack on institutional accountability therefore has a domino effect on discursive accountability.

Sri Lanka’s constitutional democracy and time

Above and beyond the immediate problems associated with the proposed 20th Amendment, recent developments in Sri Lanka remind me once again about the enduring alliances between state, party, family and corporate-wealth in our constitutional democracy. The formulation is present at any given moment in Sri Lanka’s history, albeit with variations. Each iteration has permitted varied forms and degrees of constitutional shamelessness. In ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’, constitutional-law expert Tarun Khaitan argues that the discourse of hyper-nationalism, the discourse of welfare-development-populism, and the managerial discourse of probity, decisiveness and efficiency allow for constitutional democracy to be undermined in India. This argument extends to Sri Lanka.

However, a constitutional democracy requires vertical accountability at a minimum. It requires institutional and discursive accountability if it is to survive incremental or full-frontal attacks.

It brings me back to the constitutional ping pong that we see in Sri Lanka today. Breaking up the rally requires that Sri Lanka’s polity recognise the risks that the 20th Amendment poses to our democracy. It requires us to call out the shamelessness with which political parties and their leaders exploit the Constitution to consolidate their political power. At this juncture, political parties taking different positions on the 20th Amendment ought to remember and recall their conduct in the past. They ought to confront the shamelessness with which they play constitutional ping pong with Sri Lanka’s constitutional democracy. Did their party support the establishment of the executive presidency? What was their position on the 17th, 18th and 19th amendments and why? How do they reconcile those views with their current views on the proposed 20th Amendment? If they changed their views across time, why did they do that?

It is incumbent upon Sri Lankan citizens to ensure that political actors, across the political divide, be held accountable to the principles of constitutional democracy under which they derive their political power and to the moral standards that they claim to respect.